RTI Activist » Blog Archive » Analysis: Where do the limits Quasi-Judicial Authorities’ Discretionary Powers lie?
Home » Featured, Latest in RTI, News, RTI Act, RTI News

Analysis: Where do the limits Quasi-Judicial Authorities’ Discretionary Powers lie?

8 July 2012 No Comment

RTI Activist krishnaraj Rao

RTI Activist Krishnaraj Rao’s Analysis: Where do the limits Quasi-Judicial Authorities’ Discretionary Powers lie?

Let us Understand Bombay High Court’s Directions to all Quasi-Judicial Authorities in Maharashtra about How to Hold Hearings, Give Orders etc.

Dear friends,

There are many authorities in India and in each state, where the complainant can himself file the complaint without the aid of a lawyer. They are not courts. The orders of these bodies are typically passed in a shorter time as compared to the judiciary, i.e. the courts. If people are not satisfied, the aggrieved parties can appeal in the courts. We need to know what their lawful powers are while conducting hearings, following various procedures for ascertaining facts and giving orders. So, please read the below analysis and understand where your rights lie.

 

Examples of quasi-judicial authorities (both State & Central):

  1. State Information Commission (Maharashtra State Information Commission)
  2. Central Information Commission (CIC)
  3. National Consumer Disputes Redressal Commission (NCDRC)
  4. State Consumer Disputes Redressal Commission (CSDRC in each state)
  5. District Consumer Disputes Redressal Forum (Consumer Forum in each district)
  6. Deputy Registrar (DR) or Assistant Registrar (AR) of Cooperative Societies (at each ward)
  7. District Deputy Registrar (DDR) in every district or jurisdiction
  8. Divisional Joint Registrar (DJR) (Malhotra House in Mumbai)
  9. Registrar/Commissioner of Cooperation Department of each state (in Pune for Maharashtra)
  10. Minister/Principal Secretary, Cooperation Department of Maharashtra
  11. National Human Rights Commission (NHRC)
  12. State Human Rights Commission (Maharashtra HRC)
  13. Competition Commission of India
  14. Appellate Tribunal for Electricity
  15. State Electricity Regulatory Commission (MERC)
  16. Railway Claims Tribunal
  17. Income Tax Appellate Tribunal
  18. Intellectual Property Appellate Tribunal
  19. Central Excise and Service Tax Appellate Tribunal
  20. Banking Ombudsman
  21. Insurance Ombudsman
  22. Income Tax Commissioner
  23. Income tax Ombudsman
  24. Electricity Ombudsman
  25. State Sales tax Appellate Tribunal
  26. Securities & Exchange Board of India (SEBI)
  27. Securities Appellate Tribunal (SAT)
  28. Insurance Regulatory & Development Authority (IRDA)
  29. Maharashtra Police

Some of the above are independent constitutional bodies, while others are very much a part of the administration or the executive. Some have many rules and procedures framed for them, by themselves or contained in the law framed by legislature, while others are free to decide on-the-spot as to their course of action. But we need to understand the common ground rules that the Bombay High Court has framed for all of them.

 

Difference between Judicial and Quasi-Judicial Function

 

There are three organs of State – the Legislature, the Executive and the Judiciary. The function of the legislature is to enact the law; the executive is to administer the law and the judiciary is to interpret the law and to declare what the law is.

 

But as observed by the Supreme Court in Jayantilal Amratlal v. F. N. Rana, it is not necessary that legislative functions are exclusively performed by the legislature, executive functions by the executive and judicial functions by judiciary.  The executive/administration also performs a judicial function, and act as a quasi-judicial authority.

 

WHAT IS A JUDICIAL FUNCTION?

 

A judicial function by any authority presupposes an existing dispute between two or more parties, and it has four requisites:

 

(1) The presentation (not necessarily oral) of their case by both parties to the dispute;

 

(2) If the dispute is a question of fact, the authority must ascertain the fact by means of evidence produced by the parties, with the assistance of argument by (or on behalf of) the parties based on such evidence;

 

(3) If the dispute between them is a question of law, the submission of legal argument by the parties;

 

(4) A decision which disposes of the whole matter by finding upon the facts in dispute and ‘an application of the law of the land to the facts found, including, where required, a ruling upon any disputed question of law.’

 

Where the above four elements are present, the decision is a judicial decision even though it might have been made by any authority other than a court, e.g. by Minister, Board, Executive Authority, Administrative Officer or Administrative Tribunal.

 

WHAT IS A QUASI-JUDICIAL FUNCTION?

 

The word ‘quasi’ means ‘not exactly.’ An authority is described as ‘quasi-judicial’ when it has some attributes of judicial functions, but not all.

 

A quasi-judicial decision may involve (1) and (2) above, but does not necessarily involve (3) and never involves (4). The place of (4) is taken by administrative action, the character of which is determined the individual authority in their official capacity. For instance, a statute may empower a Minister to take certain actions if certain facts are proved, and it may give him an absolute discretion whether or not to take action.

 

In such a case, the minister must consider the representations of parties and ascertain the facts – to that extent the decision contains a judicial element. But, the facts once ascertained, his decision does not depend on any legal or statutory direction, because he is free within the statutory boundaries to take any administrative action as he may think fit: that is to say that the matter is not finally disposed of by the process of (4).

 

The element of discretionary power is necessarily present in all authorities and all decisions, whether quasi-judicial, judicial or purely administrative. The courts of law also exercise discretion. A quasi-judicial function stands mid-way between a judicial function and an administrative function. A quasi-judicial decision is nearer the administrative decision in terms of its discretionary element and nearer the judicial decision in terms of procedure and objectivity of its end-product.

 

Characteristics no (1) and (2) may also vary in quasi-judicial decisions. In many cases, the authority may decide a matter NOT BETWEEN TWO OR MORE CONTESTING PARTIES BUT BETWEEN ITSELF AND ANOTHER PARTY, e.g. an authority effecting compulsory acquisition of land. Here the authority itself is one of the parties and yet it decides the matter. It does not represent its case to any court or authority.

 

Also, there may be cases in which NO EVIDENCE IS REQUIRED TO BE TAKEN AND YET THE AUTHORITY HAS TO DETERMINE THE QUESTIONS OF FACT after hearing the parties, e.g. ratemaking or price-fixing.

 

Finally, even after ascertainment of facts, unlike a regular court, A QUASI-JUDICIAL AUTHORITY DOES NOT FEEL BOUND TO APPLY THE LAW TO THE FACTS SO ASCERTAINED, and the decision can be arrived at according to other considerations (such as public policy or administrative discretion) which are unknown to an ordinary court of law.

 

DISTINCTION BETWEEN JUDICIAL AND QUASI-JUDICIAL FUNCTIONS

 

A quasi-judicial function differs from a purely judicial function in the following respects

 

(a) A quasi-judicial authority has some of the trappings of a court, but not all of them; nevertheless there is an obligation to act judicially.

 

(b) A dispute between two parties is an essential characteristic of a judicial function, but this may not be true of a quasi-judicial function.

 

(c) A court is bound by the rules of evidence and procedure while a quasi-judicial authority is not.

 

(d) While a court is bound by precedents, a quasi-judicial authority is not.

 

(e) A court cannot be a judge in its own cause (except in contempt cases), while an administrative authority vested with quasi-judicial powers may be a party to the controversy but can still decide it.

 

IN DECIDING CASES, COURTS APPLY PRE-EXISTING LAW WHEREAS ADMINISTRATIVE AUTHORITIES EXERCISE DISCRETION. However, in order to maximize the scope of our rights as citizens, we need to understand where the limits of those discretions lie. This excellent Bombay High Court judgment in 2009 draws some much-needed lines as to the due procedures to be followed by quasi-judicial authorities. If they go wrong in such matters, we may challenge them in High Court – and that is the power of a citizen.

 

EXCERPTS FROM BOMBAY HIGH COURT JUDGMENT ON  WRIT PETITION NO. 4101 OF 2007

[Smt.Savitri Chandrakesh Pal. … Petitioner. V/s. State of Maharashtra & others]

 

“14. This Court, having seen the mode and manner of decision making process and the procedure adopted for deciding the appeals, revisions, review and/or stay applications, this Court was compelled to pass the order dated 4th September 2008 directing the State Government to place on record the PROCEDURE, NORMALLY, FOLLOWED AND ADOPTED BY ALL THE DEPARTMENTS OF THE STATE GOVERNMENT OF MAHARASHTRA while hearing and deciding quasi-judicial proceedings.

 

15. The State Government, after the aforesaid order dated 4th September, 2008, appeared through Shri V.A.Gangal, Special Counsel and informed that a committee has been constituted consisting of the Chief Secretary, Law and Judiciary with the officers of General Administration Department with Shri V.A.Gangal, Advocate and Special Counsel for the State of Maharashtra, to streamline the procedure of hearing and deciding quasi-judicial proceedings by the officers of the State of Maharashtra including the Hon’ble Ministers of the respective departments. On the suggestion of this Court, Mr.Anand Grover, who was appointed as Amicus Curie to assist this Court, was also included in the said committee.

 

16. The aforesaid committee was granted time to submit their report. The said committee submitted its report on 7th January, 2009 whereunder the guidelines were framed and the procedure was laid down prescribing the mode and manner of hearing the revisions, appeals, review applications including application for interim reliefs by the State Government and its functionaries so as to streamline the decision making process. The said report was accepted by this Court by consent of the parties.

 

PROCEDURAL GUIDELINES FOR QUASI-JUDICIAL AUTHORITY:

————————————————–

17. This Court in exercise of powers conferred under Articles 226 and 227 of the Constitution of India prescribes the following procedure to be adopted by quasi-judicial authorities including the Ministers, Secretaries, officials and litigants while hearing and determining appeals, revisions, review applications and interim applications etc.:

 

(1) Memo of appeal or revision, review and or any application shall specifically mention under which enactment and/or under what provisions of law the said appeal/ review/ revision or application is filed.

 

(2) The appellant/ applicant shall give a synopsis of concise dates and events along with the memo of appeal or revision.

 

(3) The appeal, revision and/or application shall be filed within a period stipulated under the law governing the subject from the receipt of the order/ decision which is impugned in the above matter. In the event of delay, it should only be entertained along with application for condonation of delay.

 

(4) At the time of presentation of the appeal, review or revision, the applicant shall, if, filed in person, establish his identity by necessary documents or he shall file proceedings through authorised agent, and/or advocate.

 

(5) The application shall be accompanied by sufficient copies for every opponents/ respondents and also supply 2 extra copies for the authorities.

 

(6) For issuance of summons to the opponents/ respondents, court fees/ postal stamps of sufficient amount shall be affixed on the application form/ memo of appeal or revision as the case may be.

 

(7) In addition to service through the authority, appellant/ applicant may separately send the additional copies to each of the opponents/ respondents by registered post acknowledgement due and may file affidavit of service along with evidence of despatch. The postal and acknowledgment alone should be treated as evidence of service in the event of service through postal authority.

 

(8) In the event of an urgency of obtaining an interim relief like stay, injunction/ other interim order or direction or status-quo etc, a specific case of urgency should be made out in the application, which the authority may entertain subject to the brief reasons recorded. The said order shall also be communicated immediately to all the effected persons. The proof of timely despatch of the Registered A.D.s and all the acknowledgments shall be separately maintained.

 

(9) If there is real urgency, the concerned authority may grant ex parte interim/ ad-interim relief for the reasons to be recorded for a particular period only within which time the service on the concerned opponents/ respondents shall be effected. Appellant/ applicant should file affidavit of service, if such party requires early hearing or continuation for interim relief or of an appeal, revision or review.

 

(10) The competent authority shall also communicate the next date of hearing to all the parties along with time and place and shall, as far as possible, adhere to the said date and time of hearing.

 

11) The concerned official in every department should be asked to remain present at the time of hearing and assist the concerned authority in the matter.

 

(12) Reasonable sufficient time be provided between the date of receipt of notice and the actual date of hearing. If any party is unable to remain present at the time of hearing for a sufficient cause, one further opportunity should be given to such party for hearing.

 

(13) The authority hearing quasi-judicial matters shall duly fix a date, time and venue for such hearing. Such authority shall refrain from interacting with third party during the course of hearing either in person or on phone and shall not do any act which would tend to affect or prejudice fair hearing.

 

(14) A speaking order shall be passed by the authority hearing the matter as early as possible after the hearing is concluded and, as far as possible, within a period of four to eight weeks from the conclusion of the hearing, on the basis of the record before it as well as the submissions made at the hearing. The order must contain reasons in support of the order.

 

(15) The authority shall not receive information or documents after the hearing is concluded and/or shall not pass the speaking order on the basis of such documents and/or information unless such material is brought to the notice of the parties to the proceedings following rules of natural justice.

 

(16) The order passed by the quasi-judicial authority on the hearing shall be forthwith communicated to all the parties by Registered A.D.

 

(17) No application or request or prayer from the political worker, Member of Legislative Assembly, Member of Parliament or third party shall be entertained in the quasi-judicial proceedings unless such person is a party respondent or intervenor in the proceedings.

 

(18) The order pronounced shall be communicated to the parties immediately.

 

(19) Record of hearing shall be meticulously maintained in a separate Roznama.

 

(20) The notings of concerned officials/ law assistants to assist the authority shall include only content of facts and legal provisions along with case laws, if any.

 

(21) The notings made by the law officials/concerned officials shall not be in the form of order.

 

18. In addition to the above guidelines, the quasi-judicial authorities shall also follow the parameters laid down by this Court in the case of Lokmanya Nagar Priyadarshini v. State of Maharashtra, 2007 (1) Bom.C.R. 929, which read as under:

 

PARAMETERS

 

“(a) While considering the stay application, the authority concerned should at least briefly set out case of the applicant/ appellant, as the case may be.

 

(b) While granting the ex parte order, it should be granted for a shorted duration with short notice to the opponent(s).

 

(c) If ex parte stay is to be granted, then the authority passing the order should specify the reasons in short for grant of ex parte order.

 

(d) The Authority passing the order should,

 

(i) record its findings as to whether or not a prima facie case is made out with short reasons in support of the finding;

(ii) record its finding as to in whose favour balance of convenience lies, and

(iii) record its finding whether non-grant of interim relief would cause any prejudice to the person seeking interim relief.

 

(e) The ingredients at (d) (i) to (iii) should be discussed and positive finding should be recorded while granting or refusing to grant interim relief.”

 

19. The aforesaid procedural guidelines shall also be applicable to all quasi-judicial authorities in respect of hearing of appeals, revisions, review applications/ interlocutory applications, where there are no specific rules prescribed for hearing under a specific law like Maharashtra Co-operative Societies Act, Bombay Tenancy and Agricultural Lands Act, etc.

 

20. Before parting with the matter, I may place on record appreciation of the services rendered by Mr. Anand Grover, Advocate, Amicus Curiae and all other advocates and also assistance rendered by the Chief Secretary, Law and Judiciary with officers of the General Administration Department of the Government of Maharashtra to this Court.

 

21. THE CHIEF SECRETARY, STATE OF MAHARASHTRA IS DIRECTED TO CIRCULATE THIS JUDGMENT TO ALL CONCERNED ALONG WITH HIS LETTER EMPHASISING THE NEED TO FOLLOW IT, so as to exhibit transparency in the decision making process. The compliance report submitted to this Court will be highly appreciated.

(V.C.DAGA, J.)

Comments are closed.